Criminal Defense Community Responses to COVID-19: Working to Decrease the Number of People in Detention

This week, while the U.S. was preparing for a mass shut down to stop the spread of COVID-19, and schools and business closed, the criminal defense bar ramped up to get to work to protect the least popular population amongst us – incarcerated defendants.

Across the country, court proceedings are being postponed and court houses are closing down or limiting operations, putting many of our client’s cases on hold for the indefinite future. But as criminal defense attorneys know, for incarcerated individuals there remains a critical and imminent danger of COVID-19 infection by virtue of their confinement. On Monday, The New York Times published an opinion piece titled An Epicenter of the Pandemic Will Be Jails and Prisons, if Inaction Continues, which emphasized, to those unaware of these issues, the importance of asking “what steps are being taken to protect the health of people in jails and prisons, and the staff who work in them.”

The article highlighted what we know is the reality, that our country’s correctional facilities are a fertile ground for disease. It also pointed out the particular risks of the spread of COVID-19 in our correctional system: our corrections system is overcrowded, keeps individuals in close quarters and COVID-19 spreads rapidly between people, many of whom appear to be asymptomatic when infected. The terms we have heard non-stop since the outbreak of the COVID-19 pandemic, “social distancing” and “quarantine,” are simply not attainable in our country’s correctional facilities. The added difficulties of limited testing kits and resources for detection of the disease create a perfect storm for our incarcerated clients, who would likely be the last on the list for access.

Last week, the Bureau of Prisons and Immigration Centers Announced that in response to the COVID-19 threat there will be no visits from family, friends or attorneys permitted at any of the 122 facilities around the country for 30 days. The Federal Bureau of Prisons has indicated that it was a preventative measure, and their Coronavirus information page continues to read, “To-date, no inmates have been diagnosed with COVID-19.”

Members of the Women White Collar Defense Association (WWCDA) jumped into action and shared ideas and motions on their list serve. The traffic became so much that they created a resource bank, collecting and organizing motions and other helpful information for their membership to access. Just today, one member shared an order from SDNY District Court Judge Alison Nathan (here) that granted a motion for reconsideration of bond not only citing the elevated health dangers based on coronavirus but the effect on the defendant’s ability to prepare a defense. I am so proud to be a part of an organization full of brilliant criminal defense attorneys who are innovating and focusing on helping their clients, rather than just themselves, during this frightening time.

In fact, criminal defense list serves across the country have lit up with activity and the sharing of resources, including sample motions (here’s one from the NACDL) and successful orders. The Oregon Federal Defender released Law In The Time of Corona: Federal Defense Edition early this week, outlining the types of arguments defenders can make for clients at each stage of proceedings and connects the particular risks of COVID-19 to the applicable case law and relevant U.S.C. sections, and the Defender Service Office Training Division has a page with COVID-19 related resources. Our defense community is cognizant that limiting social visits in federal facilities, and any local or state measures in response to COVID-19 is not enough to protect incarcerated clients.

These are moments that should make us all proud to be a part of the criminal defense bar and which demonstrate collective strength – not only has our community continued to zealously advocate for societies forgotten and least popular in a time of crisis, but we have banded together in a common goal to support one another in that pursuit.

Comment below with any helpful resources and tools for fellow defenders seeking to advocate for their clients’ release and stay safe.